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Unfinished Business: Paid Family Leave in
California and the Future of U.S. Work-Family
Policy
Ruth Milkman
City University of New York
Eileen Appelbaum
Center for Economic and Policy Research
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Unfinished Business: Paid Family Leave in California and the Future of
U.S. Work-Family Policy
Abstract
[Excerpt] We have been studying the impact of PFL on California employers and workers since the bill
creating the new program was signed into law in late 2002. In this book we report on the results of extensive
survey research and fieldwork that we have conducted over the past decade, analyzing the ways in which the
state's PFL program has benefited both workers and employers in the nation's most populous state, as well as
the limitations of the program. We also explore some of the lessons that can be learned from California's
pioneering PFL program—lessons that should be helpful not only to the many other states currently
considering similar programs but also to the future development of family leave policies for the nation as a
whole.
Keywords
paid family leave, California, parenthood, childcare
Comments
The abstract, table of contents, and first twenty-five pages are published with permission from the Cornell
University Press. For ordering information, please visit the Cornell University Press.
This article is available at DigitalCommons@ILR: http://digitalcommons.ilr.cornell.edu/books/90
U N F I N I S H E D BUSINESS
Paid Family Leave in California and the
Future of US, Wor\-Family
Policy
RUTH MILKMAN AND EILEEN APPELBAUM
ILR PRESS
AN IMPRINT OF
CORNELL UNIVERSITY PRESS
ITHACA AND LONDON
Copyright © 2013 by Cornell University
AH rights reserved. Except for brief quotations in a review, this book, or
parts thereof, must not be reproduced in any form without permission in
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Press, Sage House, 512 East State Street, Ithaca, New York 14850.
First published 2013 by Cornell University Press
First printing, Cornell Paperbacks, 2013
Printed in the United States of America
Library of Congress Cataloging-in-Publication Data
Milkman, Ruth, 1954- author.
Unfinished business : paid family leave in California and the future of U.S.
work-family policy / Ruth Milkman and Eileen Appelbaum.
pages cm.
Includes bibliographical references and index.
ISBN 978-0-8014-5238-3 (cloth : alk. paper)
ISBN 978-0-8014-7895-6 (pbk.: alk. paper)
I. Parental leave—California. 2. Parental leave—United States. 3. Work and
family—Government policy—California. 4. Work and family—Government
policy—United States. I. Appelbaum, Eileen, 1940—author. II. Title.
HD6065.5.U6M55 2013
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2013015494
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CONTENTS
Acknowledgments
ix
1. Introduction: The Case for Paid Family Leave
1
2. The Politics of Family Leave, Past and Present
16
3. Challenges of Legislative Implementation
40
4. Paid Family Leave and California Business
55
5. The Reproduction of Inequality
85
6. Conclusions and Future Challenges
107
Methodological Appendix
119
Notes
131
References
137
Index
145
1
INTRODUCTION
The Case for Paid Family Leave
California made history on September 23, 2002, when Governor Gray
Davis signed a bill into law creating the nation's first comprehensive paid
family leave (PFL) program. Although nearly every other country in the
world guarantees paid leave to employed mothers (and in many cases,
fathers as well) when they take time off to care for a new child, the United
States is famously exceptional in its failure to do so.1 Since 1993, the federal Family and Medical Leave Act (FMLA) has guaranteed unpaid jobprotected leaves for new parents of up to twelve weeks. However, it makes
such leaves available to only about half of the U.S. labor force, and even
those who are covered often cannot afford to take unpaid leaves.2 A handful of states (including California) have temporary disability programs
that provide partial wage replacement to mothers during and immediately
after pregnancy. 3 In the rest of the country, however, paid family leave is
available only to workers whose employers provide it as part of a package
of fringe benefits. With the exception of union members who often obtain
such benefits through collective bargaining, non-college-educated workers
2
Chapter 1
and others in jobs with low pay and status often lack access even to paid
sick days and paid vacation, and are even less likely to have employerprovided disability insurance or paid family leave. The growing numbers
of freelancers, independent contractors, and other precarious workers who
have no ongoing ties to a single employer also typically lack these basic
benefits. As a result, millions of American workers are regularly forced to
choose between economic security and providing vital care for their families. Against this background, California's 2002 PFL legislation was a
major breakthrough, along with a similar measure that New Jersey passed
into law in 2008.4
The Need for Family Leave
As family and work patterns have shifted in the United States, demand for
time off from paid work to attend to family needs has increased dramatically. Several recent social trends have contributed to this growth. The
most important among them are rising female labor force participation,
especially among mothers; the aging of the population and the accompanying surge in demand for eldercare; and men's increased involvement
(although it remains relatively modest) in parenting and other types of unpaid caregiving.
In the past, most family care was provided on an unpaid basis by wives
and mothers, who typically withdrew from the labor force entirely when
their children were young or when other family members needed assistance. But over the past century, female labor force participation rates, especially among mothers of young children, have increased dramatically; by
2010, women were 47 percent of the civilian labor force. Between 1975 and
2010 alone, the participation rate for mothers with children under age three
almost doubled, rising from 34 percent to 61 percent. In a sharp historical
reversal, mothers are now more likely to be in the labor force than women
generally: the overall female labor force participation rate in 2010 was
59 percent (U.S. Department of Labor 201 la, 4-5,19). Employment during
pregnancy has also become the norm: in the first decade of the twenty-first
century, about two-thirds of first-time mothers in the United States were
employed while pregnant, up from 44 percent in the early 1960s (Laughlin
2011,4). Although many women still leave the labor force for brief periods
The Case for Paid Family Leave
3
when they have children, they are far more likely than in the past to be
continuously employed over the course of the life cycle. Most mothers in
the twenty-first century, then, must find ways to balance the needs of their
children with the demands of their jobs.
At the same time, many women today—as well as a growing number
of men—are devoting considerable amounts of time to caring for elderly
family members. In 2011, the U.S. Department of Labor's American
Time Use Survey (ATUS) found that 19 percent of employed women
and 15 percent of employed men were unpaid eldercare providers. Many
of them were simultaneously engaged in parenting, making up what
is popularly known as the "sandwich generation." Indeed, the A T U S
found that 23 percent of adults who were providing eldercare in 2011
also had children under age eighteen in their households (U.S. Department of Labor 2012a), As the U.S. population has aged, demand for eldercare has steadily increased, and reduced family size means that the
workload involved is distributed across a smaller number of children
and other kin than in the past. In most families today, all adults are in the
labor force, so that eldercare demands add to the challenges of balancing
work and family.
Men's participation in these activities has increased somewhat in
recent decades, although women continue to shoulder the bulk of
unpaid childcare and eldercare alongside their paid work, a pattern
Gornick and Meyers (2003) call "partial gender specialization." H i s torical data are fragmentary, but the A T U S found that in the 2007-11
period mothers spent 2.5 times as much time as fathers did providing
physical childcare (such as feeding or bathing children) in households
where the youngest child was under age six; for all childcare activities
combined, the gender gap was nearly as stark: mothers spent 1.9 times
as much time on childcare as fathers did (in all households with children under eighteen). Gender inequality in eldercare is less extreme
but still substantial: women spent 1.5 times as much time as men did
providing eldercare in 2011, according to the A T U S (U.S. Department
of Labor 2012a). 5
In regard to childcare, however, there is evidence of a generational
shift: not only are younger men engaged in parenting to a greater extent than their fathers and grandfathers were, but many of them express
a preference to become even more involved. Young men in long-term
4
Chapter 1
heterosexual relationships also face growing demands from their wives
or partners to participate more fully in family life (Gerson 2010). Yet even
when they do contribute substantially in terms of time, fathers remain
far less likely than mothers to leave the labor force or change their hours
of employment to accommodate childcare demands (Raley, Bianchi, and
Wang 2012). In part, this reflects the constraints imposed by employers'
inflexible scheduling demands and traditional gender norms, as well as
the continuing resilience of those norms in the wider society. Nevertheless, the stresses of balancing work and family have increased substantially for men. A 2008 national survey found that 60 percent of employed
fathers in dual-earner families reported experiencing "some" or "a lot" of
"work-life conflict," almost double the 1977 level of 35 percent (Galinsky,
Aumann, and Bond 2011, 18).
Taken together, these trends—increased maternal labor force participation, the aging of the population and the accompanying expansion in the need for eldercare, and increasing male involvement in
caregiving—have led to rapid growth in demand for family leave in
the United States in recent decades. Time off from their jobs can alleviate the pressures on workers during periods of peak family caregiving
demand, like the arrival of a new child, or when serious illness strikes a
family member. In addition, as a large body of research shows, the recipients of care benefit significantly when their family members have access
to time off from work. One recent study found a negative effect on the
frequency of well-baby visits, breastfeeding, and child immunizations
among children whose mothers returned to work less than twelve weeks
after childbirth, when compared to those whose mothers took longer
leaves (Berger, Hill, and Waldfogel 2005; see also Human Rights Watch
2011, 45-50; Gornick and Meyers 2003, 242-45). Similarly, elderly patients who are cared for by family members have significantly shorter
hospital stays and recover faster from illnesses than those who are not
(Van Houtven and Norton 2004).
Access to paid time off is critically important in this context, especially for low-income workers who often cannot afford to take time off
without some kind of wage replacement. One recent study found that
parents who have access to paid sick leave or paid vacation time are five
times more likely to stay home with a sick child than are those who lack
such benefits. The consequences of this differential are far-reaching,
The Casefor Paid Family Leave
5
since ill children recover more quickly when their parents are present
(Heymann 2000,59; see also American Academy of Pediatrics, Committee on Hospital Care 2003; Ruhm 2000; Schuster 2009). Yet paid time
off is not available to many workers who need it. As Jody Heymann
(2000) showed over a decade ago, it has typically been less available to
women than men, despite the fact that women are still responsible for
the bulk of family caregiving.6 And it is far less available to the growing
numbers of low-wage and precarious workers than to their counterparts
in well-paid, stable jobs—even though the latter can more easily afford
to take time off even without wage replacement. In short, gender and
class inequalities are inextricably intertwined with the problem of access
to family leave.
Family Leave and Social Inequality
A major source of gender inequality in the twenty-first century is the
earnings penalty that women typically experience when they become
mothers. Although outright gender discrimination in the labor market and job segregation by gender has by no means disappeared, it has
been significantly reduced since the 1970s. Women's educational attainment and career aspirations have risen substantially, and gender-based
wage disparities have narrowed, especially in entry-level jobs. Declining real wages for men—especially non-college-educated men—over
this period also have helped to reduce the gender gap in pay. Yet that
gap has by no means disappeared; indeed, it widens steadily over the
typical female career, in a pattern of accumulating disadvantage (Valian 1998; Glass 2004). That motherhood is central to this process is suggested by evidence that even when they do not significantly reduce
their hours of paid work, mothers' average earnings are significantly
less than those of childless women (Waldfogel 1997; Budig and England
2001). The "motherhood penalty" partly reflects the persistently asymmetric gender division of housework and family care, but there is also
evidence of direct employer discrimination against mothers, especially
those in the managerial and professional ranks. By contrast, fathers in
these occupational categories instead enjoy a wage premium (Correll,
Benard, and Paik 2007).
6
Chapter 1
However, even as gender inequality has lessened, class inequality has
grown dramatically. The earnings gap between managers and professionals and other highly educated workers, on the one hand, and the growing
ranks of low-wage workers, on the other, has widened steadily since the
mid-1970s. Pay inequality has increased sharply not only among male
workers but also among women (Bianchi 1995; McCall 2001). Endogamous marriage and mating patterns—the tendency for people to choose
spouses and partners from backgrounds similar to their own—multiply
these inequalities further (McCall 2010). Families are also more stable
among the affluent, who typically marry at later ages and have lower divorce rates; at the other end of the economic spectrum a disproportionate
number of families are headed by single mothers employed at low-wage
jobs (DeParle 2012). And in dual-earner families, what were often in an
earlier era "second incomes" earned by wives and mothers have become
increasingly essential to meeting basic living costs (Warren and Tyagi
2003).
Inequality among women has also soared in regard to access to paid
leave, as the U.S. Census Bureau (Laughlin 2011) has recendy documented.
As figure 1.1 shows, in the 1960s women's access to paid maternity leave
HLess than high school
a High school graduate
ESome college
•Bachelor's degree or higher
Figure 1.1. Percentage of women who received paid leave before or after their first birth, by
educational attainment, selected years, 1961-65 to 2006—08. Paid leave includes all paid maternity,
sick, and vacation leave, and other paid leave used before the birth and up to twelve weeks after
the birth. Data from Laughlin 2011, 12.
The Case for Paid Family Leave
7
for a first birth varied little by educational level—a reasonable proxy for
social class. But that began to change in the 1970s, and the shift became
increasingly apparent in the decades that followed. By the 2006-08 period,
the most recent for which data are available, 66 percent of employed mothers with a bachelor's degree or more received some form of paid maternity
leave before or after their first birth, whereas only 19 percent of employed
women with less than a high school degree did so.
Table 1.1 exposes the main source of these disparities, namely that access to employer-provided paid time off and other fringe benefits is concentrated in the upper levels of the labor force. The data in the table are
drawn from the March 2011 National Compensation Survey (NCS), a
survey of employers conducted by the U.S. Department of Labor. It highlights the pattern of access to selected paid leave benefits by wage level
(note that unlike figure 1,1 it includes both male and female workers).
These data show that very few U.S. workers have access to paid family
leave per se, although many do have access to other forms of paid time off,
like paid sick leave, paid vacation, and short-term disability—which in
practice are often used for wage replacement during family leaves.
TABLE 1.1 Access to selected paid leave benefits for workers in private industry and state and
local government, by average wage level, March 2011 (%)
Private industry
State and local government
Paid
vacation
Short-term
disability
Paid
family
leave
Paid
sick
leave
Paid
vacation
Short-term
disability
Paid
family
leave
All
workers
63
77
38
11
89
60
23
17
Average
32
51
17
5
75
56
19
14
Second
25%
66
84
36
10
93
84
26
17
Third
25%
74
90
47
12
94
70
26
18
Highest
25%
85
89
58
19
96
36
23
18
ill
Paid sick
leave
Source: National Compensation Survey (U.S. Department of Labor 2011b).
" The percentile groupings are based on the average wage for each occupation surveyed in the NCS,
which may include workers above and below the threshold.
8
Chapter 1
The key point is that access to such benefits rises sharply with average wage levels, especially in the private sector.7 For low-wage workers,
employer-provided paid time off is extremely limited. Among those in occupations whose average wage was in the lowest 25 percent, two-thirds of
private-sector workers lacked paid sick leave and nearly half had no access
to paid vacation, while even greater majorities lacked access to short-term
disability (83%) and paid family leave (95%). By contrast, those in occupations whose average wage was in the highest 25 percent had extensive
access to various forms of paid time off.
The 2011 ATUS confirms this pattern of inequality. Based on workers' self-reports, it found that 50 percent of full-time workers whose usual
weekly earnings were $540 or less (roughly the bottom 25%) had access to
some form of paid leave, compared to over 80 percent of full-time workers
with usual weekly earnings of $831 or more. And only 22 percent of parttime workers had access to paid leave, the ATUS found (U.S. Department
of Labor 2012b).8
The need for financial support during leaves from work is increasingly
acute for those in the bottom and middle layers of the income distribution, especially in light of the fact that real incomes for these workers have
declined sharply in recent decades. Yet, as both figure 1.1 and table 1.1
show, these workers are far less likely to receive such support than are their
better-paid counterparts. Many other data sources verify this pattern of class
disparity. One recent survey, for example, found that two-thirds of lowincome mothers, compared to slightly over a third of middle- and upperincome mothers, lose pay when they miss work because a child is sick
(Kaiser Family Foundation 2003). Apart from lost income, missing work
under such conditions often has other negative employment consequences—
up to and including the risk of being fired, as Joan Williams (2010, chap. 2)
has documented in detail (see also Williams and Boushey 2010).
Professional and managerial workers tend to have more flexible schedules (although they also work longer hours, on average) than low-wage
workers, many of whom are not permitted to leave work to take a family member to a medical appointment, and indeed often may not even
make personal telephone calls on "company time." Similarly, pumping
breast milk at work is an option available mainly to well-paid professional
women, while for lower-paid mothers it is "close to impossible," as the
New Yor^ Times reported (Kantor 2006).9
The Casefor Paid Family Leave
9
T h e work-family problems of the majority of female workers, who
labor at low wages in gender-stereotyped clerical, sales, and service "pink
collar" jobs, remain relatively invisible both in scholarly literature and in
public discourse, where the work-family pressures facing women in the
elite professions and in high-level managerial roles receive a disproportionate share of attention (see, for example, Blair-Loy 2003; Mason and
Ekman 2007; Correll, Benard, and Paik 2007; Stone 2007).10 The media
regularly feature stories about high-level female managers and professionals who have "opted out" of the workforce to devote themselves to
motherhood, despite the fact that this is a minority phenomenon even
Within the female elite (see Williams 2010, chap. 1). A recent example
that attracted extensive public attention is the 2012 article "Why Women
Still Can't Have It All," by Anne-Marie Slaughter, who left her highlevel post at the U.S. State Department after two years because the grueling hours it required precluded her from spending enough time with her
teenage sons (Slaughter 2012).
Indeed, a well-documented class difference in regard to work-family
balance involves the distinctive work scheduling patterns of low-wage
workers and their more highly paid counterparts. As Jerry Jacobs and
Kathleen Gerson (2004) have shown, managers and professionals (of both
genders) typically must work far longer hours than they would prefer.11 In
contrast, many nonsupervisory workers seek more hours of employment
than they are offered by employers, and in many cases have jobs with unpredictable, irregular, and inflexible schedules that make combining work
and family extremely challenging (Lambert 2008).
Ironically, the escalating time demands on the nation's upper-tier
workers emerged just when large numbers of highly educated women
first gained access to elite professional and managerial jobs. Mary BlairLoy (2003) has poignantly exposed the hegemony of the "male model" at
the highest levels of the business world, where family involvement for
women (as well as men) is effectively precluded by a deeply entrenched
corporate culture that demands total "24/7" commitment to the firm.
A less extreme version of this phenomenon pervades the elite professions
and the middle management ranks. One result is that even in companies that appear to be "family friendly," available paid-time-off benefits
often go underutilized (see Hochschild 1997; Glass 2004). As Blair-Loy
notes, some women managers respond by "opting out," abandoning their
10
Chapter 1
fledgling careers (see also Stone 2007); others forgo motherhood entirely,
and the rest use their abundant financial resources to hire substitute.
caregivers.
The expectation of extensive work hours that is so deeply embedded
in managerial and professional culture conflicts directly with another set
of class-specific expectations affecting affluent mothers, namely "intensive
mothering" (Hays 1996). Upper-middle-class families, eager to reproduce
their class position, seek to provide their children from infancy onward
with a wide array of highly structured activities designed to maximize
their social, emotional, and intellectual development—an effort that
imposes extensive demands on mothers, as well as on the paid caregivers
they employ. As Annette Lareau (2003) has documented, parenting takes a
very different form in working-class communities.
Although long working hours are an especially serious problem among
elite female professionals and managers, these women typically have far
more extensive resources at their disposal for "work-family reconciliation" than their counterparts in clerical, service, sales, and other lowwage jobs. Well-paid professionals and managers are more able to afford
the array of services—from prepared meals to paid domestic labor and
childcare—on which families increasingly rely to reconcile work and
family demands. And as we have already seen (in figure 1.1 and table 1.1)
highly educated women and those with high earnings are far more likely
than their less affluent counterparts to have access to some form of income
support (through employer-provided benefits) during any leaves from
work that they take to attend to family needs. When California's PFL
program began operating in 2004, then, those who stood to gain the most
were workers in the lower echelons of the labor market. Indeed, the new
program, which was available to nearly all private-sector workers in the
state, held the promise of helping to level the playing field in regard to
access to paid leave.
California's Paid Family Leave Program
California's PFL program provides up to six weeks of partial wage
replacement—55 percent of weekly earnings, up to a maximum benefit of
$1,011 per week in 2012—for eligible workers who take time off to bond
The Casefor Paid Family Leave
11
with a new child or to care for a seriously ill family member. Financed by
a payroll tax, the program builds on California's long-standing State Disability Insurance (SDI) system, created in 1946 to assist workers suffering
from temporary disabilities that require them to take time off from work.
In the 1970s, SDI (along with its counterparts in the other U.S. jurisdictions with temporary disability insurance programs) was extended to cover
pregnancy-related disability, in keeping with the policy linkage between
disability and pregnancy established in that period (Vogel 1993). The PFL
program extended SDI still further to cover "bonding" and "care" leaves,
with benefits becoming available starting on July 1, 2004. New Jersey followed suit, implementing its Family Leave Insurance (FLI) program,
generally similar to PFL in California, in mid-2009.
Like SDI, PFL is structured as an insurance program. There are
no direct costs to employers: the wage replacement benefits are funded
entirely by an employee-paid payroll tax that finances both SDI and
PFL. (The combined tax in 2012 was 1,0% on the first $95,585 in
wages.) Unlike FMLA, California's PFL program does not provide job
protection, nor does it guarantee the continuation of employer-provided
health insurance and other fringe benefits, although many leave-takers
have these protections under FMLA or the California Family Rights
Act (CFRA).
Since PFL benefits became available in mid-2004, most women employed in California's private sector who give birth to a child have been able
to draw on both SDI and PFL to obtain wage replacement at 55 percent
of their usual earnings for a total of sixteen to eighteen weeks. Those who
take advantage of both programs typically receive SDI disability benefits
for four weeks before delivery, as well as for six to eight weeks after the
birth (six weeks for normal births, eight for those involving a C-section);
immediately following that period they receive an additional six weeks of
PFL benefits for baby bonding.
Although modest by international standards^ this combined benefit is
by far the most extensive publicly sponsored paid leave program for new
mothers in the United States. (New Jersey's FLI program is a close second,
although its maximum benefit is substantially lower—$572 per week in
2012.) California's PFL program offers wage replacement for bonding
leaves not only to biological mothers but also to new fathers, domestic
partners, and adoptive or foster parents, all of whom are also eligible for
12
Chapter 1
up to six weeks of benefits for bonding with a new child. PFL benefits are
also available to workers who take time off to care for a seriously ill spouse,
parent, child, or domestic partner.
The single most important characteristic of the PFL program is that,
like SDI—but in sharp contrast to FMLA—its coverage is nearly universal within the private sector. FMLA covers all public-sector workers,
but in the private sector it is limited to workers employed by organizations with fifty or more employees on the payroll at or within seventyfive miles of the worksite. To be eligible for FMLA, workers must also
have logged 1,250 or more hours for their current employer in the year
preceding the leave, and they must have worked for that employer for at
least twelve months. In practice only about half the U.S. workforce, and
less than one-fifth of new mothers, meet the eligibility requirements for
FMLA (Ruhm 1997,177). Moreover, many of those who are eligible simply cannot afford to take advantage of the unpaid leaves FMLA makes
available.
By contrast, apart from some self-employed persons, virtually all
workers in California's private sector are eligible for SDI and PFL
benefits.12 The only requirement is that claimants must have earned
$300 or more in wages at a private-sector employer in the state during any quarter in the "base period" (typically five to seventeen months
before filing a claim); there is no threshold for the size of the organization they work for, and they need not have worked for their current
employer for any minimum period of time. Thus, under PFL and SDI
paid leave is available to the growing numbers of low-wage workers,
the majority of whom are female, and many of whom are precariously
employed, with limited or no access to employer-sponsored benefits
providing paid time off.
We have been studying the impact of PFL on California employers
and workers since the bill creating the new program was signed into
law in late 2002. In this book we report on the results of extensive survey research and fieldwork that we have conducted over the past decade,
analyzing the ways in which the state's PFL program has benefited both
workers and employers in the nation's most populous state, as well as
the limitations of the program. We also explore some of the lessons that
can be learned from California's pioneering PFL program—lessons that
The Casefor Paid Family Leave
13
should be helpful not only to the many other states currently considering
similar programs but also to the future development of family leave policies for the nation as a whole.
One key lesson involves the policy-making process itself. Historically,
and especially in recent decades, legislative proposals to create new social
programs have confronted formidable political challenges. For starters,
U.S. employers can be relied on to vigorously oppose any efforts to introduce new forms of labor market regulation, as they have done consistently
for more than a century. In recent years, concern about budget deficits and
growing mistrust of government among the wider population has compounded the challenge facing public policy advocates. Many existing social
programs are under political attack and others have endured severe budget
cutbacks.
Yet paid family leave laws—along with related initiatives such as those
mandating paid sick days for all workers—continue to enjoy widespread
popular support, rooted in the steadily increasing pressures on families that
struggle to balance work outside the home with caring for young children
or seriously ill family members. As we document in detail in chapter 2, the
deep reservoir of popular support for paid family leave made it possible
to build a broad political coalition composed of women's groups, senior
citizens' organizations, children's advocates, and labor unions to win passage of California's PFL bill in 2002.
In chapter 3 we provide an overview of the way the program has functioned over the past decade, reviewing the details of the program's operation and presenting data on the ways in which California workers have
utilized PFL. One highlight of this chapter is the fact that male PFL claims
for bonding with a new child have increased substantially and steadily over
the years since the program began operating. This suggests that PFL may
be helping to reduce gender inequality in the division of household and
family responsibilities (see Lester 2005).
We then turn to the impact of the program on employers. Although
California business groups did oppose and actively campaign against the
PFL legislation, our research shows that their fears about the program
turned out to have little basis in reality. As we show in chapter 4, companies have easily adapted to the implementation of PFL over the past decade, and their widely voiced concerns about abuse and of negative effects
14
Chapter 1
on productivity and profitability have proven to be almost entirely unwarranted. Instead, our data reveal that many employers have experienced
cost savings as a result of PFL. The new program indirectly subsidizes employers who previously provided other forms of wage replacement during
family leaves, insofar as their employees draw on the state's PFL benefits
instead. Only a few employers have incurred additional costs as a.result
of the introduction of PFL, and even they have benefited from improved
worker morale and reduced turnover.
California's PFL program also benefits workers and their families
in a variety of ways, as we show in chapter 5. Not only do those who
draw on PFL receive much-needed income support when they take
time off to attend to family needs but recipients of care—new babies
and seriously ill individuals—experience substantial health-related
benefits, such as greater duration of breastfeeding and faster recovery
from illness, when their family members use the program. Both men
and women take longer leaves than before PFL was established (RossinSlater, Ruhm, and Waldfogel 2013), and they are more satisfied with the
length of their leaves.
However, our research also uncovered some serious limitations of the
program's effectiveness. First and most important, we found that awareness of PFL remains extremely limited among Californians. Although
support for the idea of paid family leave is extensive across the state's
diverse population groups, most eligible residents are not even aware that
the new state program exists. Moreover, awareness is lowest among those
who would benefit most from the program: Latinos, low-wage workers,
younger employees, and immigrants. This has substantially limited the
potential of PFL to act as a social leveler by making wage replacement for
family leaves universally available, rather than being largely confined to
the best-paid segments of the workforce.
Those workers who are aware of PFL, our data show, most often learn
about it from their employers. And the employers who provide paid leave
benefits of their own are the ones with the greatest incentive to disseminate
information about the program, since, as we noted above, their expenses
are reduced insofar as their employees draw on PFL instead. This dynamic tends to reproduce the longstanding inequality in access to paid
leave between workers—mostly professionals and managers and other
well-paid employees—who have access to employer-provided benefits and
The Casefor Paid Family Leave
15
those who lack such access. Unless awareness of PFL grows among the
rest of the workforce, the stark economic inequalities that characterize
twenty-first century California will be reinforced more than ameliorated
by the program.
We also found that some workers who are aware of PFL have declined
to claim the benefit, even when they were eligible to use it to take time
off to bond with a new child or to care for a seriously ill family member.
Many of these workers reported that they feared that using PFL might
have negative repercussions for them on the job, potentially reducing their
chances for career advancement or even leading them to be fired. As noted
earlier, PFL is structured as an insurance program, and does not include
any job protection. Some workers have such protection under FMLA or
CFRA, but for those who lack it and whose employers are unsympathetic
to their family situations, taking advantage of PFL may indeed be risky
in terms of job security. Workers' anxieties on this score have only been
heightened by the high unemployment rates that California has suffered
since the start of the Great Recession in 2007.
Another concern that PFL-aware workers expressed about the program,
one that led some of them not to take advantage of it, is the 55 percent
wage replacement level. For many workers the benefit is inadequate to
meet their economic needs. For a variety of reasons, then, PFL take-up
rates have been lower than expected since the program began operating
in mid-2004.
At the end of this book we discuss the implications of our findings
for future public policy making in the area of work-family balance,
suggesting ways m which the California PFL program can be improved
in the years to come. The United States has a long tradition of using states
as laboratories for public policy making, in that state-level experiments
often come to inform the crafting of federal legislation. With that in
mind, we conclude this book with some lessons of California's experience
with PFL for the rest of the country.
2
T H E POLITICS OF FAMILY LEAVE,
PAST AND PRESENT
In November 2011, Fox News anchor Megyn Kelly publicly chastised
conservative talk-show host Mike Gallagher after he lambasted her threemonth maternity leave as "a racket" on the air. Although Kelly shares Gallagher's conservative worldview and has criticized the U.S. government's
"massive entidement programs" herself on other occasions, she was outraged by his comments regarding her use of family leave. "We're populating the human race," she exclaimed. "It's not a vacation. It's hard,
important work." Kelly added that the United States is "the only country that doesn't require paid maternity leave," pointing out that the FMLA
provides only for unpaid leaves (Paul 2011).
As this incident suggests, attitudes about family leave do not always
conform to broader political patterns. Like the underlying problem of
work-family balance that it seeks to ameliorate, this is a crossover issue
that elides the standard conservative denunciation of "big government."
At the elite level, to be sure, political alignments on such topics are highly
predictable, with most Republican elected officials and business lobbyists
The Politics of Family Leave, Past and Present
17
consistently opposing legislative proposals for family leave, while Democrats and organized labor tend to support such initiatives. But among the
broader population there is a much weaker relationship between political
identification and attitudes toward family leave. In that regard, Megyn
Kelly's views are in no way anomalous, as can be seen in figure 2.1, which
summarizes the results of a representative survey of adult Californians'
attitudes toward paid leave that we conducted in the fall of 2003—a year
after the bill creating the nation's first comprehensive PFL program
became law.
Although there is some variation in the level of support by political
orientation—as well as by gender, race and ethnicity, nativity, age, and
geographical location—what is most striking is the high degree of popular consensus on this issue. That more than three-fourths of respondents
who described themselves as "conservative" favored paid leave is particularly telling. These findings are consistent with those of other surveys
and polls on the issue. In a 2007 nationwide poll, for example, 76 percent
Figure 2.1. Support for paid leave among California adults, by selected characteristics, fall 2003.
N = 1050. The figure shows the proportion of respondents in each subgroup who responded
"favor" to the question: "Do you favor or oppose the idea of a law that guarantees that eligible
workers receive a certain portion of their pay when they take family or medical leave?" For more
details on the survey methodology, see Milkman and Appelbaum 2004. Data from Golden Bear
Omnibus Survey, University of California Berkeley Survey Research Center.
18
Chapter 2
of respondents favored expanding FMLA to guarantee paid leave (Ness
2008). Similarly, 76 percent of respondents to a 2010 national survey of
registered voters indicated that they supported paid family leave laws for
childbirth and family care, and 69 percent of them supported paid sick
days legislation (Institute for Women's Policy Research 2010). And in a
November 2012 national election night poll, 86 percent of voters nationwide said they thought it was important for Congress and the president to
consider new laws like paid sick days and paid family and medical leave
insurance. This poll found strong support across party lines, with 73 percent of Republicans, 87 percent of independents, and 96 percent of Democrats saying they thought this was important (National Partnership for
Women and Families 2012).
This pattern of broad public support for PFL may appear paradoxical, given the political ascendancy in the late twentieth century of
market fundamentalism, or "the idea that society as a whole should
be subordinated to a system of self-regulated markets" (Somers and
Block 2005, 261). As many commentators have noted, this perspective is
especially influential in the United States, which has a long tradition of
popular mistrust of the state, and indeed market fundamentalist rhetoric has contributed to the declining support for many governmentsponsored social programs in recent years. Nevertheless, not only did
California successfully establish its PFL program in 2002 but several other jurisdictions around the country have followed suit in the
years since. In 2007, Washington State passed a paid family leave law
(although funding has yet to be provided to begin operating it). The following year, New Jersey passed a law creating a family leave insurance
program similar to the California PFL program, which began paying
out benefits in mid-2009. In addition, paid sick days legislation was
passed in three U.S. cities (Milwaukee, San Francisco, and Washington,
D.C.) during the first decade of the twenty-first century,, and Connecticut passed the first statewide paid sick days law in 2011. That same year,
Seattle passed a paid sick days ordinance as well. Building on this momentum, in 2013 the city councils of Portland, Oregon, and New York
City both passed paid sick days legislation. At this writing, campaigns
for paid family leave and paid sick days legislation are under way in
several other states and cities as well.1 Could work-family legislation
The Politics
of Family
Leave,
Past and Present
19
be an exception to the general rule that government-sponsored social
programs are anathema to the majority of Americans in the twenty-first
century?
The record of successful advocacy on this issue cannot be explained simply by reference to the strong public support for paid leave evident in polls
and surveys like the one depicted in figure 2.1. Indeed, even a broad consensus in favor of an idea is no guarantee of its political success, especially if
powerful interest groups oppose it. As we document below, the California
PFL bill faced serious, organized opposition when it was proposed in 2002,
led by the California Chamber of Commerce and its local affiliates. The
business lobby strongly denounced the measure, claiming that PFL would
impose great hardship on employers (especially small businesses), invite
abuse from workers, and inflict severe economic damage on the state as a
"job killer." Opponents advanced similar arguments in the other jurisdictions that passed or considered passing paid family leave and paid sick days
laws in recent years.
Although the business community's countercampaign failed to prevent
passage of California's P F L law, it did win some significant modifications
in the configuration of the program. Whereas the original proposal included twelve weeks of paid family leave, with costs evenly split between
a payroll tax on employers and one on workers, business lobbying led to
elimination of the employer tax, which in turn reduced the maximum benefit to six weeks. Ultimately workers alone were required to pay the full
costs of the program. 2 Pressure from business groups also resulted in an
amendment providing that employers could require workers to use up to
two weeks of paid vacation time before drawing on the PFL benefit (Koss
2003; Labor Project for Working Families 2003). With these modifications, the bill was passed by the California state legislature in August 2002,
and signed into law by the governor a month later.
A political context where Democrats hold power may be a necessary condition of success for these types of campaigns. In California in
2002 Democrats had majorities in both houses of the legislature as well
as the governorship. But this is not a sufficient condition for winning
passage of laws like the one that created P F L . T w o additional key elements contributed to paid leave advocates' legislative success in California
and elsewhere: (a) outflanking the business lobby by organizing a wide
20
Chapter 2
variety of interest groups into a broad coalition in support of PFL, and
(b) framing the issue with a narrative highlighting the compelling human
needs addressed by paid leave, especially its positive effects on children
and families. To pass California's landmark law, the advocates built a
broad coalition that included women's organizations, advocates for children, senior citizens' groups, medical practitioners, organized labor, and
others, capitalizing on the popular support for paid leave. The campaign
leaders were also skilled at framing the issue, focusing public and media
attention on the ways in which PFL would help families provide care for
seriously ill loved ones and allow parents to bond with newborn babies.
They also hammered home the compelling point that workers should not
be forced to choose between their families and their jobs (Dorfman and
Lingas 2003).
Although each of the partners in the coalition backing PFL contributed to the campaign's success, by all accounts the strong support provided
by organized labor was especially critical. Labor's political influence in
California was at a high point in 2002, and the California Labor Federation (the statewide AFL-CIO body) in particular had extensive lobbying
experience and detailed knowledge of the legislative process. Unions not
only had a long track record of winning paid leave benefits for their members through the collective bargaining process (see Gerstel and Clawson
2001) but they also had consistently supported legislation to expand such
benefits for workers generally. And, crucially, the leadership of the state
Federation was strongly committed to the PFL bill.
Another factor that worked in favor of PFL advocates was the fact that
the proposed program was relatively simple and inexpensive to administer. The fact that it could be funded by a modest payroll tax with little or
no fiscal impact immediately removed one of the standard conservative
arguments from debate. In this regard it was also helpful that in California (and later in New Jersey), the bureaucratic machinery to provide
temporary disability benefits was already in place, and the administration
of PFL benefits could be incorporated into the existing agency's responsibilities at minimal expense. Although that particular approach is feasible
only in the handful of states that already have temporary disability insurance programs, paid leave advocates have developed alternative mechanisms to administer paid leave programs in other states and nationally
that similarly build on existing bureaucratic capacity—for example, by
The Politics of Family Leave, Past and Present
21
linking paid leave benefits to existing state unemployment insurance programs or to the federal Social Security system (see Workplace Flexibility
2010 and CHEFS 2010).
The political dynamics that shaped the successful campaigns for paid
family leave in the states of Washington and New Jersey, and in the various jurisdictions around the country that enacted paid sick days laws in
the early twenty-first century, were generally similar to those that led
to PFL's successful passage in California in 2002. In each case business
and employer organizations vigorously opposed the enabling legislation, yet ultimately the advocates prevailed. Passing social legislation is
never easy, especially in the twenty-first century's intensely antigovernment climate. But in the nation's "blue" cities and states it can be done
with a strong and well-organized coalition, including vital support from
organized labor—which cannot be taken for granted, since some labor
leaders, most of whom are still male, may not see this issue as a high
priority—and a campaign narrative that highlights the growing pressures on workers struggling to reconcile family responsibilities with employment. Framing the issue in stark human terms, as these campaigns
have demonstrated, can trump market fundamentalist rhetoric that constructs paid leave as a "job killer."
The Politics of Paid Family Leave in Historical Perspective
Employer opposition to social insurance proposals has a long history,
stretching back long before the recent ascendancy of market fundamentalism. Nor is such opposition limited to the United States. As Gosta EspingAndersen (1990,22) pointed out in his classic comparative study of welfare
capitalism, throughout the capitalist world "employers have always opposed de-commodification," defined as any service "rendered as a matter
of right. . . [that allows individuals] to maintain a livelihood without reliance on the market," He classifies the United States among the "liberal"
(that is, market-oriented) countries where such opposition is especially
strong.3 Indeed, for more than a century, U.S. employers have mobilized
consistently to oppose not only decommodification proposals but also a variety of other basic labor regulations, ranging from minimum wage and
maximum hours legislation to occupational health and safety standards.
22
Chapter 2
As historians Sanford Jacoby (1997) and Jennifer Klein (2003) have shown,
the result has been a nation with extremely underdeveloped state social
provision alongside a "public-private welfare state" (Klein 2003) in which
employer-provided health insurance and other "fringe benefits" are made
available to some workers, with far more meager provision for the population as a whole.
Indeed, except in California, New Jersey, and the few other jurisdictions with temporary disability insurance programs, U.S. workers who
have paid leave benefits receive them direcdy from employers. As a result, access to paid leave is unequally distributed across the workforce.
The basic pattern is similar to that of health insurance coverage: well-paid
managers and professionals are more likely than low-wage workers to
have access to paid-time-off benefits; those who work for large companies
are more likely to have access than those employed by small businesses or
the self-employed; unionized workers are more likely to have access than
their nonunion counterparts; and public-sector workers are more likely to
have access than those in the private sector.
This reflects both employers' greater interest in retaining highly trained
employees with firm-specific skills and the variation in bargaining leverage between union and nonunion workers, on the one hand, and between
private- and public-sector workers, on the other (the latter are not only
far more likely to be unionized but their employers are not seeking profitmaximization). Moreover, the costs associated with employer-provided
paid family leave—unlike those for many basic labor standards such as
maximum hours or paid vacation'—vary enormously depending on the
size of the business as well as the demographic composition of the workforce. A company whose workforce is made up primarily of women of
childbearing age would have much higher costs than one with a largely
male workforce, for example. The same general point applies to employerprovided health insurance, although in that case an older workforce tends
to increase costs.
In contrast to health insurance coverage, however, employer-provided
paid leave benefits (typically cobbled together from some combination of
paid vacation, sick leave, disability insurance, and parental leave) are virtually never extended to workers' spouses or domestic partners—a serious
limitation given the fact that men are more likely than women to have
access to all types of paid-time-off benefits, even as women continue to
The Politics of Family Leave, Past and Present
23
provide the bulk of child and family caregiving. Yet, whereas a growing
number of employers—faced with the huge and rapidly rising costs of providing health coverage—have lent their political support to national health
insurance legislation, almost none openly support publicly sponsored paid
leave programs like California's PFL—despite the fact that such programs
would provide many of them with significant cost savings, as we show
in chapter 4. The widely varying costs of paid family leave for different
types of employers make government-sponsored social insurance, such as
the California PFL program, a particularly viable approach to meeting the
work-family reconciliation needs of workers, a point we discuss further in
chapter 6. Nevertheless, the political reality on the ground is that the business lobby consistently opposes all decommodification legislation, whether
it takes the form of social insurance or not.
The history of previous U.S. work-family legislation is instructive in
this regard. Popular support for national family leave legislation gained
increasing traction in the late 1970s, as more and more mothers entered
the labor force. Yet even the minimalist (by international standards)
FMLA became law in the face of unrelenting opposition from business
interests. Fifteen years earlier, business had also opposed the Pregnancy
Discrimination Act (PDA), which outlawed employment discrimination
on the basis of pregnancy; with support from a coalition led by organized labor and feminist organizations it nevertheless became law in 1978
(Vogel 1993, 71). Passing national legislation on such issues became more
difficult in the period of conservative ascendancy that followed the 1980
election, but advocates nevertheless began campaigning for a family and
medical leave law in 1985. During the presidency of George H. W. Bush,
Congress voted to approve bills similar to the 1993 FMLA twice, with
significant bipartisan support, but Bush vetoed both bills. The issue was
then debated in the 1992 presidential election campaign, and immediately afterward, in January 1993, Congress passed a modified version of
the legislation. A month later, FMLA was signed into law by President
Clinton—the very first bill he signed after taking office (Martin 2000;
Bernstein 2001).
The seven-year campaign for FMLA is in many respects the prototypical case of political contestation over work-family policy in the United
States. The national Chamber of Commerce and small-business groups
vigorously opposed the bill, while organized labor and the women's
24
Chapter 2
movement led the coalition lobbying for it. As Taylor Dark (1999, 166)
has documented, two key unions, the Service Employees International
Union and the American Federation of State, County and Municipal
Employees, both of which have large female memberships, were "key
proponents of the legislation, providing financial resources, interest
group coordination, and personnel for the lobbying drive." The FMLA
campaign, however, was a broader coalition effort, with strong backing
from the National Organization for Women and other feminist organizations that had previously worked to win passage of the PDA, along with
children's advocates and others (see Bernstein 2001, chap. 5), who joined
forces against the business lobby.
Cathie Jo Martin succinctly summarizes the arguments of FMLA's
opponents:
Small business predicted dire economic impacts to companies from the
high costs of hiring replacement workers... [and] also argued that the newbenefit would constrict the creation of jobs and hurt female workers by motivating employers to discriminate against women in hiring... and reduce
the flexibility with which managers and workers could negotiate compensation packages. (Martin 2000,221-22)
It was perfectly acceptable for companies to offer such benefits voluntarily
(as many already did, especially for professional and managerial employees),
but the business lobby passionately opposed any employer "mandate" in
this area. As Martin rendered the business view: "Although parental and
disability leaves are excellent employee benefits, Congress should not dictate benefits. Doing so is contrary to the voluntary, flexible and comprehensive benefits system that the private sector has developed." (Martin
2000,221)
The claims that leave legislation would have negative effects on companies are largely unsupported (as we show in chapter 4 for the California PFL case), but they are an integral component of the market
fundamentalism that underlies the worldview of the business lobby.
That ideological orientation has proven impervious thus far to the energetic efforts of work-family advocates to articulate the "business case"
for family leave—a case built around evidence that providing workers
with access to leave reduces turnover, offering substantial cost savings
The Politics of Family Leave, Past and Present
25
to employers, and that such access also boosts employee morale and reduces "presenteeism," or going to work while sick (see Williams 2010,
65-71). The problem is that business opposition to family leave legislation is not rooted in evidence-based cost-benefit analysis, but rather
reflects a broader animus against all types of "employer mandates," including even minimum- and living-wage laws. In the neoliberal era that
began in the mid-1970s, all such proposals are routinely denounced as
"job killers." .
Among employers, the New Deal system of social provision has lost
the limited legitimacy it once enjoyed, so that business opposition to
virtually any proposal for paid leave—which is simultaneously a form
of decommodifi cation and a type of labor regulation—is a foregone conclusion. In our fieldwork we have even encountered corporate managers who, blissfully ignorant of practices in the rest of the world, go so
far as to assert that the introduction of paid family leave in the United
States would endanger the nation's global competitiveness. One highlevel California corporate manager, in expressing her chagrin about the
state's PFL law shortly after its passage, suggested that it would hurt
the state economically. "That's why we moved our call center to Ireland!" she exclaimed, evidently unaware that paid leave had existed
in Ireland for half a century. On the other hand, frontline and middle
managers who regularly witness the challenges of work-family balance
on the ground tend to be more supportive. Indeed, as Frank Dobbin has
shown, in many cases human resource managers (a majority of whom
are female) helped to institutionalize maternity leave in their companies
in the 1970s and 1980s (Dobbin 2009, 170-75).4
Their market fundamentalist orientation notwithstanding, employers
are able to rapidly adjust to political defeat on these issues. Thus, only a
few years after the business lobby lost the battle to prevent the passage of
FMLA, most companies had adapted with little difficulty to its requirements. Although there has been some concern about the extent to which
FMLA's requirements are enforced (see Gerstel and Armenia 2009), a U.S.
Department of Labor survey of employers conducted in 2000 found that
about two-thirds (64%) of respondents found it "very easy" or "somewhat
easy" to comply with FMLA rules. Moreover, 84 percent of employer respondents reported that-the new law had "no noticeable effect" or a "positive
effect" on their companies' productivity, while 90 percent said it had "no